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Johns v Shell New Zealand Ltd
30 May 2007, P R Stapp, WA 88/07, (7 pages)
PRACTICE AND PROCEDURE - No appearance for applicant - Previously granted adjournment - Further adjournment declined - Requested another adjournment without committing to investigation dates - Alleged unable to leave Malaysia due to tax problems he associated with respondent's behaviour - Respondent opposed application - Employment relationship problem filed almost three years after personal grievance raised - Applicant had not complied with directions of Authority to attend mediation and provide further evidence - Applicant also raised new claims and sought interim orders - If genuinely wanted to pursue new claims should have followed proper process, Authority did not intend to deal with them - Authority left with impression applicant acting to deliberately delay matters - Nature of alleged problem required applicant to personally appear - Authority concerned about applicant's availability and concluded he had no intention of being available for investigation meeting speedily and promptly - Provided document in Malaysian, if wanted to rely on document should have arranged translation - Reasonable to expect applicant to have raised alternatives if difficult for witnesses to attend - Authority not satisfied applicant prevented form leaving Malaysia or arranging representation to be present at investigation meeting - Conditions of earlier adjournment not met and second adjournment not requested in timely manner - Respondent entitled to certainty and closure - Request for adjournment declined - Applicant had no good cause for failure to attend or be represented - Authority proceeded to determine substantive matter - UNJUSTIFIED DISMISSAL - Redundancy - Applicant unable to prove ulterior motive for dismissal or establish grounds for remedies - Genuine redundancy - Dismissal justified
Result: Application dismissed ; Orders accordingly ; Costs reserved
Perry v Tom Ryan Cartage Ltd
15 May 2007, J Crichton, CA 53/07, (8 pages)
UNJUSTIFIED DISMISSAL - Redundancy - Whether dismissed or abandoned employment - After discussing route's viability with drivers, respondent decided to disestablish applicant's position - Parties had different recollections of subsequent meeting - Applicant claimed made redundant and given week's notice - Respondent denied making applicant redundant - Submitted meeting continued previous restructuring discussion and sought alternatives to redundancy - Applicant believed on reasonable grounds had been made redundant - However, Authority equally certain this was not respondent's intention - Respondent sent applicant letters inviting him to meeting but parties unable to set date - Finally sent letter terminating employment for abandonment - Fact respondent still trying to develop relationship irrelevant, damage already done - Applicant dismissed - Dismissal devoid of appropriate process - Dismissal unjustified - Remedies - While applicant did not contribute to dismissal he did contribute to confusion which followed by not replying to letters and continuing to receive pay without comment - Failed to mitigate loss - Contribution not significant - Contributory conduct 20 percent - Driver
Result: Application granted ; Reimbursement of lost wages ($5,236.88) ; Compensation for humiliation ($6,000 reduced to $4,800) ; Arrears of holiday pay ($1,697.84) ; Interest on holiday pay (7%) ; Costs reserved
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